The 2nd meeting of the Interim Joint Committee on Judiciary was held on Tuesday, October 15, 2002, at 10:00 AM, in Room 149 of the Capitol Annex. Senator Robert Stivers, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Robert Stivers, Co-Chair; Representative Gross Lindsay, Co-Chair; Senators Lindy Casebier, Ray Jones II, Marshall Long, Gerald Neal, Katie Stine, Elizabeth Tori, and Jack Westwood; Representatives Paul Bather, Perry Clark, Jesse Crenshaw, Joseph Fischer, Bob Heleringer, Arnold Simpson, John Will Stacy, Kathy Stein, Gary Tapp, Rob Wilkey, and Brent Yonts.
Guests: Senator Charlie Borders; George Thornhill, President, Fathers on Rights for Custody Equality (FORCE); Ann Swango, Director, Northern Kentucky Chapter of Parents and Children for Equality (PACE), and Director, Children’s Rights Council of Kentucky; Ishmon Burks, Secretary, Justice Cabinet; Professor Paul H. Robinson, Northwestern University, College of Law; Professor Bill Fortune, University of Kentucky, College of Law; Vertner Taylor, Commissioner, Department of Corrections; Hazel Combs, Deputy Commissioner, Community Services and Local Facilities; Steve Berry, Director, Community Services and Local Facilities; Jim Woodrum, Executive Director, Kentucky Jailer’s Association; Barbara Jones, General Counsel, Justice Cabinet; Danna Droz, Director, KASPER Program; Aldona Valicenti, Chief Information Officer, Governor’s Office for Technology, and Chair, UCJIS Committee; Debbie Flach, Probation and Parole Officer; David Perry, Probation and Parole Officer; and David Owen, Unit Supervisor, Kentucky Correctional Institution for Women.
LRC Staff: Norman Lawson, Jr., CSA; Scott Varland, Jon Grate, Peter Cassidy, and Lisa Fenner.
The meeting was called to order by presiding Cochair Senator Stivers, the roll was called, and no quorum was present. Later a quorum was present, and the minutes were approved.
The first speaker was Senator Charlie Borders who spoke of why he had introduced 02 SR 213, which required a study of child support guidelines and the Child Support Guidelines Commission. Senator Borders related that during hearings in the 2002 Regular Session of the General Assembly that the Child Support Guidelines Commission had appeared before the Legislative Program Review and Investigations Committee. Senator Borders observed that members of the commission had been operating in violation of the open records and open meetings laws, that the commission had no economist as a member or as a consultant while deliberating child support issues, that the commission did not support the appearance of child support obligors and child support recipients at meetings of the commission, and that the commission was "arrogant" and felt that it did not need input from outside sources or from persons who had to pay or receive child support. Senator Borders observed that there is a need to better address the issues of child custody and child support, to protect the child, and to treat parents equally from the economic standpoint. Senator Borders further observed that the commission currently follows the income shares model for child support decisions but should be following the cost shares model for child support. Senator Borders urged removal of barriers, decreasing the cost of utilizing the court system, and curtailing the opportunity for one party to use the system to harass other parties, addressing the financial needs created by the remarriage of parties in support actions, increasing the timeliness of child support and custody decisions, and eliminating a system which frequently places the child support obligor below the poverty level. Under the present system, the more the supporting parent works to earn more money, the more the supported party earns without regard for whether or not the needs of the child for support have changed.
The next speaker was Mr. George Thornhill, President of Fathers on Rights for Custody Equality (FORCE), who indicated that he supported changing the child support guidelines from the income based model to the needs based model. Mr. Thornhill observed that the current system places a disproportionate share of the burden on one side and that child support awards are overstated. Mr. Thornhill urged adoption of the needs based model and equalization of tax benefits between the payer of child support and the payee. Mr. Thornhill contended that the current guidelines are in violation of the federal Family Support Act of 1998. Mr. Thornhill indicated that the current guidelines also did not take into account the time the child spends with the noncustodial parent and the expenses which the noncustodial parent has while the child is in the care of the noncustodial parent. Mr. Thornhill indicated that his view of child support theory is bolstered by the Rogers study which urged the needs based model for child support. Mr. Rogers indicated that merely increasing the amount to be paid by child support obligors under the current guidelines would merely exacerbate the problem, place more noncustodial parents into poverty, and place more noncustodial parents into noncompliance with the child support demands, and thus force the state to pay for the noncustodial parent while that parent is in jail or prison and force the state to pay for the child as well.
Senator Borders indicated that he has had much interest in changing the child support guidelines model from women as well as from men. The next speaker was Ms. Ann Swango, Director of the Northern Kentucky Chapter of Parents and Children for Equality (PACE) and Director of the Children’s Rights Council of Kentucky. Ms. Swango observed that the present child support commission should be totally replaced with a new commission, which has an economist on the commission and which meets the guidelines of the American National Standards Institute, and which has a separate budget. Ms. Swango indicated that during the 2002 Regular Session that two bills, SB 89 and SB 90, were introduced to provide for a new child support guidelines commission and for shared parenting arrangements. Ms. Swango observed that the poverty level was $6,000 in 1980 and is now $8,660 and that under the present guidelines the custodial parent and the child now receive more money through child support than they would receive if they had remained married. Ms. Swango indicated that any child support arrangement which provides the noncustodial parent with less than two-thirds of their normal income would force the noncustodial parent into poverty. Ms. Swango also urged that the costs of the noncustodial parent in providing for the child while the child is with the noncustodial parent be deducted from the child support, that the tax burden be readjusted to be more fair, and that the cost based model for child support be adopted. Senator Westwood asked Ms. Swango how often the child support guidelines should be updated, to which Ms. Swango indicated that the updating should occur every four years but that the present commission does not meet the federal guidelines and has not updated the guidelines since their inception. Ms. Swango also urged the adoption of shared parenting legislation, which failed in 2002.
Senator Borders, summing up, indicated that the Child Support Guidelines Commission is not responsive and should be replaced. Representative Stein indicated that she feels that the present commission is doing a good job.
Following the presentation, a quorum was present, and the minutes of the September meeting were approved by a voice vote.
The next item of business was the approval of Executive Order 1067, which reorganized the Kentucky State Police and elevated the forensic laboratories to Division status. Ms. Barbara Jones, General Counsel of the Justice Cabinet, explained the executive order to the committee. Senator Westwood moved and Representative Wilkey seconded a motion to approve the order. The motion passed.
The next item of business was the approval of Executive Order 1068, which reorganized the Corrections Commission, added and deleted members, and refocused the mission of the commission. Ms. Barbara Jones, General Counsel of the Justice Cabinet, explained the executive order to the committee. Senator Westwood observed that the subject matter of the executive order was the subject of 2002 RS SB 220, which failed during the 2002 regular session. Chairman Stivers asked what classes of felons would be subject to diversion programs funded by the order to which Ms. Jones replied that Class C and D felons would be affected. Representative Stacy observed that diverting drug offenders is a "bad" idea. Ms. Jones indicated that diverted offenders would be either in a home setting or community residential setting. Representative Bather asked about the relative costs of community based programs versus prison to which Ms. Jones replied that both programs cost money, that there is a problem making some alternatives available statewide, but that diversion programs cost less than prison. Representative Bather indicated that the offenders in the programs would be nonviolent and that the programs permit drug offenders and others to get treatment and counseling that they cannot get in a jail setting. Representative Lindsay indicated that he was not comfortable with the program as proposed and that portions of the program were an attempt to evade the zoning laws. In response to other questions, Ms. Jones indicated that the program is funded by $600,000 in general funds. Representative Wilkey urged more preparation of judges and probation and parole officers for the operation of diversion programs and indicated that the proposal had been approved by the Criminal Justice Council. Senator Stine asked why the Cabinet for Families and Children, the parole board, and others were deleted from the membership. Ms. Jones indicated that the programs authorized apply to adults and not to children, which was the reason for deleting the Cabinet for Families and Children, and that the Parole Board is not involved in pretrial diversion and similar alternatives to incarceration programs. Representative Yonts asked if additional federal and other funds could be gained for the operation of Drug Courts whose programs could be funded under the executive order. Ms. Jones indicated that funding might be available but was unsure as to the details but would provide further information to the committee. Representative Fischer indicated that the objected to provisions in item four relating to alternative sentencing in lieu of incarceration. Senator Long moved and Senator Jones seconded a motion to approve the executive order. The motion passed 8-6 on a roll call vote.
The next speaker was Ms. Danna Droz, manager of the Drug Enforcement Program in the Department for Public Health, Cabinet for Health Services, who works with the KASPER drug reporting system. Ms. Droz explained the provision of 2002 RS HB 26 which provided for a test of a real-time drug reporting system in two counties in Eastern Kentucky. The next speaker was Ms. Aldona Valicenti, Chief Information Officer of the Governor's Office of Technology, who indicated that her office had applied for a Bureau of Justice Assistance grant for the study to provide for real time reporting of prescriptions for and purchases of Schedule II and Schedule III controlled substances. Ms. Valicenti indicated that no decision had yet been made on the grant application but that a decision was expected in the next two weeks.
The next speaker was Ishmon Burks, Secretary of the Justice Cabinet, who gave a short history of the Penal Code Study being conducted by the Criminal Justice Council. He then introduced Professor Paul Robinson of the Northwestern University College of Law in Illinois and Professor William Fortune of the University of Kentucky College of Law. Professor Robinson gave a short history of the Penal Code revision which led up to the adoption of the present Penal Code and some of the more problematic changes which have occurred in the Penal Code since its adoption. Professor Robinson indicated that the intent was to rewrite the entire penal code but that following some opposition that the revisions would be presented to the General Assembly initially as a study. Professor Robinson observed that the 1974 code was based on the Model Penal Code, which has never been updated to serve as a model for future revision. Professor Robinson indicated that since the adoption of the Model Penal Code was adopted by two-thirds of the states that much has been learned about dealing with crime and criminals, that theories of punishment of rehabilitation have been updated, and that the "plain language" legislative drafting movement has improved the readability of the law in general but that laws based on the Model Penal Code have not necessarily kept pace. Professor Robinson indicated that he was concerned that the "430" chapters had not been fully integrated into the Penal Code and are still being used to create non penal code offenses. Professor Robinson compared the 28 years of "exponential" amendments to the penal code with barnacles on the hull of a ship which, over time, obscure the outline of the hull of the ship. Professor Robinson indicated that the "crime de jour" solution to various crime problems had created overlapping offenses, overlapping elements of offenses, and that the penalty grading problem is exacerbated. Professor Robinson cited a need to "put things back in order". Professor Robinson indicated that the research model which will be used will be that staff would review a proposed chapter, send material to working groups, that the working groups would express concerns and recommend changes, that the staff would make the changes, and that the changes with footnotes would then be submitted to a pro and con working group for final approval. Professor Robinson indicated that they hoped to have the project finished by January or February and release it as a study report. Chairman Stivers indicated that some offenses, which may be felonies such as mining violations, barbering and other regulatory violations, may not properly be within the purview of a penal code. Representative Lindsay indicated that he felt that the current commission was too big and would not get much done. Representative Lindsay recommended a smaller "blue ribbon" commission which would make recommendations to the General Assembly and that the General Assembly would then create a similar group of legislators to produce a final document for submission to the body.
The next speaker was Ms. Aldona Valicenti, Chief Information Officer, Governor's Office for Technology, who gave an update on the progress of the Unified Criminal Justice Information System (UCJIS) computerized records project. Ms. Valicenti indicated that the goal of the project is to produce a unified records system which can be used by police, prosecutors, the courts, corrections, probation and parole, the transportation cabinet, and other users as well as the public. Ms. Valicenti indicated that one of the fruits of the project has been the new digitized driver's license and that there are three pilot projects under way testing other parts of the program.
The next speaker was Mr. Ishmon Burks, Secretary of the Justice Cabinet, who gave a report on the progress of the racial profiling study and said that the findings will be presented to the Criminal Justice Council on November 12 by Dr. Debra Wilson, who is conducting the study. Secretary Burks observed that initial data seem to indicate that there are no surprising data, that whites are detained at a traffic stop for 12 minutes, African Americans for 14 minutes, and Hispanics for 17 minutes. Secretary Burks indicated that the longer period of detention for Hispanics appears to have been caused by language difficulties between officers and persons stopped.
Representative Wilkey indicated that he will present legislation changing and updating restitution in criminal cases and that the Legislation and Drug Policy Committee will be reinstituted by the Criminal Justice Council.
The next speakers were Vertner Taylor, Commissioner, Department of Corrections, Hazel Combs, Deputy Commissioner, Community Services and Local Facilities, Steve Berry, Director, Community Services and Local Facilities, and Jim Woodrum, Executive Director of the Kentucky Jailers Association. Ms. Combs indicated that presently Kentucky has 12 state operated prisons and 2 private prisons. She also stated that 16,545 inmates are in the state or private facilities, 4,201 felons are in local jails awaiting transfer to correctional facilities, 23,473 persons are on probation or parole, and 14,399 Class D and Class C felons are serving their sentences in county jails. Ms. Combs described the situation as a partnership between the Department of Corrections and local jails. Ms. Combs indicated that there are inmates who have been convicted of offenses who are in the "controlled intake" program of local jails prior to transfer to state facilities and a larger number of non sex offender Class D felons and nonviolent Class C felons serving all or a portion of their sentences in county jails at less cost to the state than incarceration in state facilities. Ms. Combs observed that the department does not control the number of persons sentenced to prison, the number released from prison, or the length of sentences, and that the Department of Corrections currently inspects jails for safety and reviews jail construction programs. At present, efforts are underway to have jails report the number of available jail beds and the number of local prisoners to the department on a continuing basis and efforts are also underway to implement a computerized billing system to assure correct billing and prompt payment of claims. Information on jail population would allow the department to better assess the location of state inmates and to provide for equitable distribution of state inmates to local jails. Since local jails are built by local governments which issue bonds for the financing of the facilities, local governments depend on the state and the federal government to provide prisoners to supplement local funds expended on local prisoners and allow for efficient use of excess bed space by the state and federal government. Ms. Combs observed that the state is paying approximately $1 million per week to house state inmates in local jails. In response to a question from Senator Westwood, Ms. Combs indicated that the state cannot tell a county that they cannot build or expand a local jail, but that while there is presently money available to pay for existing prisoners, additional jail construction could result in the inability of the state to provide prisoners to fill the additional beds, and thus defray the cost to the county for paying off the debt for building the jail. Ms. Combs indicated that a "certificate of need" process has been proposed to limit the construction of jail beds which may not be able to be filled in the future. Representative Lindsay asked Ms. Combs if the state guaranteed a certain number of prisoners to local jails to which Ms. Combs responded that the state does not make such guarantees.
The next speakers were David Perry and Debbie Flach, who are state probation and parole officers in Jefferson County, and David Owen, Unit Supervisor, Kentucky Correctional Institution for Women. The officers described a situation in which probation and parole officers have only limited authority to make arrests, and that under the existing statutes and administrative regulations there is uncertainty as to whether or not a probation and parole officer who views an offense committed in his or her presence by a person who is not on probation and parole can arrest that person. The present opinion rendered by the Department of Corrections indicated that they are not to arrest such a person and that their power of arrest is limited to probationers and parolees. The correctional officers presented a proposed change to the legislation, which would grant them peace officer status in all cases. Chairman Stivers asked the officers what they wanted and they indicated that their proposed change would provide needed clarification of the law. Representative Wilkey observed that the opinion rendered by the department should adequately answer the problem. Secretary Burks indicated that he had only recently been made aware of the problem and would study the problem and make a recommendation to the committee in the future.
Ms. Barbara Jones, General Counsel of the Justice Cabinet, was the next speaker. Ms. Jones indicated that the Department of Criminal Justice Training desired to reintroduce the 2002 Regular Session bill relating to mandatory training of law enforcement telecommunicators. Representative Simpson asked about who must pay for the training to which Ms. Jones responded that the Department of Criminal Justice Training pays for classes, lodging, board, and uniforms for trainees, but that the sending department must pay the salary of the employee while in training. Representative Simpson then observed that not only did the sending department have to pay the trainee's salary but had to pay overtime to others to cover for that employee during the 60 hours of training which has been proposed. Representative Simpson observed that this is an unfunded mandate.
The meeting was adjourned at 12:35 PM.